Kling v. Fries

Marston, J: Fries and Vilas brought an action of assumpsit against Kling to recover the amount due upon two promissory notes made by the latter and payable to the order of V. Fries & Co. The defendant pleaded the general issue, with notice that the notes sued upon were given for intoxicating liquor purchased from plaintiffs, and that they were by reason thereof null and void. The cause was tried by the court, who found the facts to be, that in 1872 and 1873 the plaintiffs were wholesale dealers in liquors at Cleveland, in the state of Ohio; that the defendant was engaged in the same business at Ionia in this state; that in October, 1872, the plaintiffs’ agent, at defendant’s place of business, took defendant’s verbal order for a quantity of liquors, and transmitted said order to the plaintiffs in Ohio for their approval; that the plaintiffs approved of defendant’s order and consigned the goods to a common carrier in the city of Cleveland; that defendant took the [277] goods from tlio carrier in Michigan, and paid the freight. Other facts were forbid as to the making and delivery of the notes,'and the amount due thereon, but it is unnecessary to set forth the same in detail. From the facts found, the court held the contract and sale was not made in Michigan, nor in violation of the laws of this state; that the plaintiffs were therefore entitled to recover; and judgment was rendered accordingly. Counsel for plaintiff in error discussed several questions which we think are not raised by this record. It is not denied but that there was evidence given on the trial tending to prove the facts found by the court, and the only question for us to determine is, whether the facts as found support the judgment. It is insisted that because plaintiffs’ agent, as found by the court, solicited and obtained the order in this state, and the defendant afterwards received the liquors from the carrier in this state, and paid the freight thereon, the contract ivas therefore a Michigan contract, notwithstanding the fact that the order ivas by the agent sent to Ohio for approval, approved there, and the goods then shipped to defendant. It is certainly quite clear that no agreement ivas entered into between the parties at the time the order ivas given. The court does not find that an agreement ivas then made, or that the agent did any thing beyond soliciting the order and sending it forward for approval by his principals. Had the order been for some other kind of goods, taken and sent forward for approval as this ivas, no one will contend that Kling could have sustained an action against Fries & Co. for a failure on their part to approve the order and ship the goods, and this irrespective of any question that might be raised under the statute of frauds. Until the order was approved or accepted by tlio plaintiffs, there ivas no agreement made. The order ivas not. binding until accepted; but wdien accepted the contract then became complete and binding. The order might have been in writing and sent to Fries & Co. by mail; or Kling might have sent a verbal [278] order by some person going to Cleveland; or be might have gone there and given tho order himself; in either event, the acceptance of tho order would have been necessary to have made a valid contract, -which must be founded on mutual assent. Tho minds of the parties for tho first time met on the approval of the order in Ohio. The contract was then entered into, made complete and binding, and nuist therefore be considered as having been made at that place. See this question discussed, and the authorities collected in 1 Parsons on Contracts, pp. 480, 485. The offer and acceptance being verbal, and the goods purchased exceeding in value the sum o£ fifty dollars, was the contract within the statute of frauds, so that an acceptance of the liquors by Kling was necessary to its validity? Illegality will not be presumed. In order to show that tho contract was illegal, it was incumbent on the defendant below to prove that it came within the statute. There was no evidence introduced, nor did the court find what tho law of the state of Ohio required as essential to the validity of such a contract, or that under the laws of that state such a contract .was void. At common law this contract would have been valid: delivery of tho liquors would not have been essential to its validity. It is said to be “a general rule of the common law, that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the thing sold delivered to the purchaser.” — Whitcomb v. Whitney, 19 Mich., 490. We cannot presume that the statute of Ohio is similar to ours. If, under the statute of that state, something else besides the acceptance of the order was essential to make the contract valid and binding, the statute should have been introduced in this case. In the absence of such proof, we must presume that the contract was valid when tho order was approved and accepted. — Cummings v. Stone, 13 Mich., 72; Ellis v. Maxson, 19 Mich., 186. It is said, however, that plaintiffs intended to place this [279] liquor in. the hands of Kling to be sold in violation of the law of this state, and therefore they cannot recover. It would be a sufficient answer to tbis position to say, that the court has not found that the plaintiffs had any such intention. As already said, we cannot presume illegality. There being no evidence or finding in the case as to what the actual intention of the plaintiffs was, we cannot presume that the plaintiffs in making a sale which we must presume was valid in the state Where they resided, and where the contract was entered into, thereby intended to assist the purchaser in violating the law of this state. The judgment must be affirmed, with costs. The other Justices concurred.